Transcript The Internet & Defamation

Cyber-Liability: Civil and
Criminal Liability on the
Internet
Dan Carroll, Q.C.
Field LLP
[email protected]
www.fieldlaw.com
Disclaimer
This presentation is intended for
general educational purposes only
and is not legal advice.
Consult your lawyer for advice
based on your situation and
circumstances.
Underpinnings
• The Gift of Speech
• The Evolution of Media
• The Law
– redistribution
– Accountability
– Defamation = libel, slander
The Newest Medium: Internet
• “Universally” accessible
• Fast
– Instant send (careful there!)
– Instant receipt
•
•
•
•
Variety of media: text, pix, video, audio
Not trustworthy
Indeterminate mass audience: worldwide
Anonymous
Intersection: Internet and the Law
“Paging Dr. Freud. Paging Dr. Freud.”
“This is yet another case that reveals the
ineffectiveness of Family Court in a bitter
custody/access dispute, where the parties
require therapeutic intervention rather than
legal attention. Here, a husband and wife have
been marinating in a mutual hatred so intense
as to surely amount to a personality disorder
requiring treatment.”
Bruni v. Bruni
(Reasons by Justice J.W. Quinn of the Ontario
Superior Court of Justice, November 29, 2010)
Intersection, continued
“In recent years, the evidence in family trials
typically includes reams of text messages
between the parties, helpfully laying bare
their true characters. Assessing credibility is
not nearly as difficult as it was before the use
of e-mails and text messages became
prolific. Parties are not shy about splattering
their spleens throughout cyberspace.”
http://www.canlii.org/en/on/onsc/doc/2010/2010onsc
6568/2010onsc6568.html
Three Paths to Cyber-Liability
• Fail to do what you should
– Install firewalls
– Protect against transmitting viruses, spyware, etc.
• Do what you should not
– Criminal Code, s. 163.1(4): possession of child
pornography
– Anti-Spam law: S.C. 2010, c.23 (not in force yet)
– Harass/Breach privacy rights/Cyberbully
• Do what you may but in a way you should not
– Defamation
Elements of Defamation
• Publication
• Of a statement that
identifies the
complainant
• Where the statement is
such that it would
lower the reputation of
the complainant in the
mind of a right thinking
citizen
• To “the world”
• Can be words or
pictures, must point to
or refer to complainant
• An objective test for
reputation: “He is a
thief and a liar.” vs. “He
is a lawyer.”
What is Defamatory?
Example from Twitter
• Horizon Group Management Ltd. v. Amanda
Bonnen
– Amanda: tenant
– Sued by Horizon: management company
• Allegation: the Tweet contained false and
defamatory matter of the Plaintiff, namely: “…Who
said sleeping in a moldy apartment wasn’t bad for
you? Horizon really thinks it’s OK.”
• Case dismissed: “The Court finds the Tweet nonactionable as a matter of law.” No reasons.
What is Defamatory?
Example from Facebook
• She “acquired AIDS while on a cruise to
Africa…While in Africa she was seen f**king a
horse..I kinda feel bad for (her) but then again I feel
WORSE for the horse…”
• “…it was not from an African cruise….it was from
sharing needles with different heroin addicts,
this…caused the HIV virus…she then persisted to
sc**w a baboon which caused the epidemic to
spread”
• She “got aids when she hired a male prostitute who
came dressed as a sexy fireman…”
What is Defamatory?
Example from Facebook, continued
• “She” is identified (through a doctored
picture of her as “the devil”)
• Action was dismissed. The posts were:
– “a puerile attempt by adolescents to outdo
each other”
– “a vulgar attempt at humor”
– But did “not contain… statements of fact.”
• Context: Facebook as the setting
surrounding the communication - one factor
What is Defamatory?
Is linking to defamatory content
“publication”?
• SCC Case Crookes v. Newton
• Newton ran a website with his commentary
on free speech and the Internet. The site did
not defame Crookes, but it contained links to
articles that did.
• Question: Do links count as “publication” in
defamation law, opening the site and its
publisher to liability?
Crookes v. Newton (2)
• SCC (split 6-2-1): Links are like footnotes; they
“are, in essence, references.”—they “communicate
that something exists, but do not, by themselves,
communicate its content”. Therefore not
“publication” for the purposes of defamation law.
– “The fact that access to content is far easier with
hyperlinks than with footnotes does not change the
reality that a hyperlink, by itself, is content neutral.”
• Court notes that since the content linked to can be
changed without notice to the linker, it would open
up unfair liability.
– “Inserting a hyperlink into a text gives the author no
control over the content in the secondary article to
which he or she has linked.”
Crookes v. Newton (3)
• Court recognizes hyperlinks are the “synapses” of
the web. Impossible to function without them.
• Doesn’t mention reductio ad absurdum: Google. If
links are publications, Google is liable for every
defamatory statement on the web.
• Court emphasizes this decision accords with recent
trend in Canadian defamation law toward greater
protection of freedom of expression
– Began with 2008 decision to modify the “honest
belief” standard in fair comment - WIC Radio v.
Simpson
– Continued with 2009 introduction of “responsible
communication on matters of public interest”
defence - Grant v. Torstar.
Crookes v. Newton (4)
• Concurrence (McLachlin and Fish.JJ.):
– “A hyperlink should constitute publication if, read
contextually, the text that includes the hyperlink
constitutes adoption or endorsement of the specific
content it links to.”
– Argues this better accords defamation precedents
which held merely approving of a defamatory
statement (without repeating it) was publication
– Contra: Linkers would still be at risk: e.g. a link reads
“I agree with this!”– the page linked to could change
without notice.
Crookes v. Newton (5)
• Dissent (Dechamps): links should be
considered publication as long as there is
evidence someone clicked through to the
defamatory material.
• “The hyperlinker performed a deliberate act
that made defamatory information readily
available to a third party in comprehensible
form.”
• Contra: would cripple the Web; does not
accord with recent trends in defamation law
Who Sues? Politicians!
• Example: The City Centre Airport Saga
• Blogger named “Darren Holmes”,
supposedly a Seattle journalist, writes a post
including this allegation against Stephen
Mandel:
• “A land developer Mayor votes to close an airport to be converted
into residential development. A group arises to protest the decision
during an election and, in response, the Mayor creates a counter
group to promote his decision to close the airport. And the counter
group is given office space and phone lines by one of the biggest
land developers in the city.”
Who Sues? Politicians!
• Implication that the Mayor has a financial
interest in downtown airport redevelopment
• Press reveals “Darren Holmes” doesn’t exist;
the blogger is Nathan Black, coordinator of
Envision Edmonton petition to keep the
airport open.
• Mayor sues Black for defamation, seeks
$500,000 punitive damages
Who Sues? Politicians!
• Mayor successfully gets the action “sealed”
– Unclear why judge sealed it. No grounds for keeping the suit
secret. Media quickly applies to have it unsealed and
succeeds.
• To link the blog to Black, Mayor gets Court
order against:
– Twitter
– Wordpress (the blog website)
• Automattic Inc. (Wordpress’s parent co.)
– MagicJack
• YMAX Corp. (MagicJack’s parent co.)
– GMAX (the hosting company)
– Shaw (the Internet Service Provider)
Who Sues? Politicians!
• Starts proceedings in San Francisco (U.S.
Federal Court) to enforce the Alberta court
order
• Six U.S. companies get roped in, plus Shaw
• Expensive, time consuming
• Suit eventually dropped once press gets
wind of it
More Politicians
• Kent v. Martin: Journalist Arthur Kent ran in the
2008 Alberta provincial election. Just before
Election Day Martin, a National Post columnist,
published an (allegedly) defamatory column about
Kent. Martin wrote:
– “Senior campaign strategists in Alberta cannot recall
a worse case of a shooting-star candidate, someone
so self-absorbed that Kent has actually mocked the
party for failing to treat him with a desired level of
reverence.”
– “The “Stud Scud” will land in politics with a thud. He
should pray to lose so his “star” qualities will find
another place to shine.”
More Politicians
• Kent lost the election and sued for $8 million in
damages
– Obviously a conservative plaintiff: the largest
defamation award against a media defendant in
Canadian history is $1.3 million
• One of Martin’s sources was Kent’s lawyer, who is
now being sued, too
• Kent has made nearly a dozen procedural
applications to add defendants, get costs, etc.
• Litigation ongoing
Have These Politicians Missed
the Boat?
• Cases since 2008 suggest defamation suits by
public figures against newspapers are an uphill
battle.
– If the speech meets the “fair comment” or
“responsible communication” tests, can only be
defeated by proving malice.
– Tough road for plaintiffs since most of the evidence
is in the possession (or mind!) of the defendant
• New emphasis on freedom of expression over
protection of reputation
• Kent v. Martin similar to Grant v. Torstar, where
Toronto Star publishes defamatory article about
prominent businessman’s sketchy connections to
provincial government; dismissed
Moral of the Story
• Even light innuendo can lead to a
defamation suit.
– Mayor’s odds at trial 50/50. Though a
defamatory implication, some truth in it
• Mayor was a developer, he did support the
closure group, and the group was given office
space by a prominent property manager, Qualico
• Speech about matters of public interest (partially)
protected by ‘fair comment’ defence
• ‘Responsible journalism’ also protected, if meets
certain responsibility criteria
Moral of the Story
- Costs of prosecuting and defending this kind of action
are very high; risk factors are many
- Lots of requests by the plaintiffs to 3rd parties for
disclosure of information, e.g. to Twitter, ISP, hosting
service, etc.
- Attempts by plaintiff to keep action under seal
- Even when speech protected by a defence, tough to
succeed on a summary dismissal application as
cases highly fact specific
- Often the plaintiffs are self-represented or otherwise
unable to pay costs if they lose
Moral of the Story
• Newspapers continue to be at the
forefront of defamation lawsuits,
particularly by public figures
– Meaning they bear the brunt of defence
costs, at a particularly poor time given their
industry’s financial condition
• But independent journalists, bloggers,
commenters, and anyone else using social
media will increasingly be targets of suits
Plaintiff Anonymity
• Can plaintiffs remain anonymous while they
pursue their defamation claims?’
• A.B. v. Bragg Communications
– The plaintiff, a 15 year old girl, was allegedly
the victim of a hoax in which a fake
Facebook profile was made using her photo
and name, containing disparaging remarks
about her sexual behaviour
Plaintiff Anonymity
• Plaintiff requested a publication ban and use
of pseudonym
• Case “pits a teenager who finds herself the
victim of on-line bullying against the public's
right to be informed by a free and
independent press given unrestricted access
to open court proceedings.”
Plaintiff Anonymity
• Application Judge denied plaintiff’s request
for anonymity (publication ban and use of
pseudonyms):
– No evidence the fake profile had any
physical, psychological, or emotional effect
on A.B.
– A publication ban would not serve society’s
interest in awareness of “how social
networking programs work and can be
destructive to young people”
Plaintiff Anonymity
• Plaintiff appeals to Nova Scotia Court of Appeal:
dismissed. Court:
“Defamation is a claim that one's reputation has
been lowered in the eyes of the public. To initiate
an action for defamation, one must present oneself
and the alleged defamatory statements before a
jury and in open court. To be able to proceed with a
defamation claim under a cloak of secrecy, strikes
me as being contrary to the quintessential features
of defamation law.”
Plaintiff Anonymity
“A.B. would wish to have her identity shielded from
the public, and the fake Facebook profile banned
from publication, apparently as a protection from
further embarrassment and public scrutiny. But,
when A.B. chose to avail herself of the court
process in the pursuit of damages for defamation,
she submitted to whatever public scrutiny attaches
to civil litigation and must accept the attendant
diminished expectation of privacy.”
Plaintiff Anonymity
• Court concluded:
“I appreciate that testimony in this case will likely be
distressful for [A.B.]. Yet embarrassment must be an
unavoidable consequence of an open justice system.
The disclosure of very personal information is typical in
cases where a plaintiff seeks damages for harm.
However, subjective feelings of discomfort cannot be
the test for anonymity. If it were, our courts would be
flooded with preliminary motions seeking anonymity
orders.”
• Supreme Court heard case on May 10, 2012
– Quorum of 7. Closed court (publication ban)
Defenses to Defamation
• Deny any one or more of the three essential
elements
– Not published
– Doesn’t identify the complainant
– Not defamatory – not capable of being
defamatory: e.g. name calling, parody
•
•
•
•
Truth/Justification
Fair Comment
Responsible Communication
Privilege: Absolute, Qualified, Statutory
Defenses to Defamation
Truth/Justification
• Applies to statements of fact
– Onus on the defendant to prove the truth of
the “sting” – the substance – of the
defamatory statements
– Must be provably true by the laws of
evidence
• Witnesses
• Documents
– Big downside risk - failure to prove truth
results in a higher damages awards and
higher costs awards against a defendant
Defenses to Defamation
Fair Comment
• Applies to statement of comment, not fact
– On a matter of public interest
– Based on fact
– Recognizable as comment
– Fairly made, in the sense that a person could
honestly express the opinion based on
proven facts
– Made without malice
Defenses to Defamation
Responsible Communication
• Applies to statements of fact
– must relate to the public interest
– must have been published “responsibly”
• e.g. based upon information a reasonable person
would accept as reliable, even though later it may
not be possible later to prove the truth of the
defamatory statement of fact on admissible
evidence
• e.g. a fair and neutral report of both sides of a
dispute
Responsible Communication
Cusson v. Quan
• An OPP constable (Cusson) travelled to
New York after 9/11
• not through his employer
• presented himself, with his dog, Ranger, as
a trained search and rescue team.
• They weren’t.
Cusson v. Quan
Cusson v. Quan
• Eventually OPP ordered him back to work.
• He resigned.
• Cusson was portrayed as a hero in the
media. There were reports he saved two
businessmen from the rubble.
• At some point, New York authorities banned
Cusson from the WTC site.
• Ontario press reports he had no K-9 training
and that he violated OPP rules by taking his
uniform and gun out of the province.
Cusson v. Quan
• Cusson sues.
• Eventually the Supreme Court decides case
(with companion Grant v. Torstar),
establishes a defence of “responsible
communication on matters of public interest”
• Requirements?
Cusson v. Quan
A. The publication is on a matter of public interest, and
B. The publisher was diligent in trying to verify the allegation, having
regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately
reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it
was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.
Malice Defeats some Defenses
to Defamation
• MALICE defeats fair comment, responsible
communication (not truth)
• Malice is established by showing, for example:
– Defendant's dominant motive was to injure the
claimant, or
– Defendant was intentionally dishonest or was
reckless as to the truth,or
– Defendant acted from an ulterior motive conflicting
with the interest or duty giving rise to the defense
• If proven, malice defeats these defenses and
results in a higher damages award and a higher
costs award against a defendant
Malice in Practice
• In Astley v. Verdun the defendant Verdun was a
shareholder in BMO; plaintiff Astley was a Director
• Verdun waged a years-long public crusade against
Astley, calling him “a white-collar criminal who
should be jailed for fraud”
– One vehicle for his publication: shareholder
proposals. Bank Act requires they be published in
proxy circulars
• Jury rejected Verdun’s defence that he was a
“shareholder’s rights advocate”
– He pleaded qualified privilege, fair comment, and
responsible communication; all rejected by jury
– Found Verdun was actuated by malice; he had an
unreasonable fixation on Astley
Malice in Practice, cont’d.
• Jury awarded $650,000 in damages
• Plus $215,000 in legal fees
• Lesson: while malice is hard to prove, if
successful, damage awards can be very
large provided the defamation was serious,
the defendant’s reputation was strong, and
the defamatory publication inflicted major
damages to livelihood
Damages
• Damages are assumed in defamation
actions; they needn’t be pleaded
– Statements that lower your reputation in the
community are considered inherently
damaging without proof of concrete effects
• But in practice damages range from nominal
($10) to exorbitant ($2.5 million: Hill v.
Church of Scientology (2011 dollars))
Unpredictable Awards
• In one 2006 case, Angel v. LaPierre, parents
began personal attacks on a website they
maintained against a school principal,
teachers, and staff.
• Principal, teachers, staff, and teachers’
union (ATA) sued.
• Damage awards ranged from $23,500
(principal) to $1 (teachers’ union).
Criminal Libel
• Defamation is also a criminal offence
• Crimes are rarely removed from the Code,
so some antique provisions are still in force,
though rarely prosecuted
– s.59 Seditious Libel – up to 14 years
• Advocating, without legal authority, the use of
force to achieve governmental change within
Canada.
– s.296 Blasphemous Libel – up to 2 years
Criminal Libel
• If these sections were dusted off, the defence
would bring a Charter challenge
• Of the two “criminal libel” sections, one criminalizes
libel “known [by the speaker] to be false” (s.300 – 5
years) & the other, s.301, has no “knowledge of
falsity” requirement (2 years)
– Meaning one could be convicted of publishing
something true but impossible for the defence to
prove
• Courts found this possibility intolerable; s.301 has
been struck down as unconstitutional in
Newfoundland (R. v. Prior), Ontario (R. v. Gill),
Saskatchewan (R. v. Lucas), and Alberta (R. v.
Finnegan)
Criminal Libel
• Only written libels can be criminal: s.298(2).
Spoken words don’t count.
• The SCC upheld the offence of publishing a
criminal libel known to be false (s.300) in 1998 (R.
v. Lucas)
– Court held a dual tort/criminal prohibition of libel was
acceptable, noting we do the same with
negligence/criminal negligence
• In light of the shift in defamation law toward free
expression, would a challenge be decided
differently today?
– Only one justice from that Court remains (McLachlin)
Criminal Libel
• Criminal libel prosecutions are rare, but they
do happen
• A former Drumheller town councillor was
recently arraigned on charges of defamatory
libel stemming from a Facebook post
– She’s elected to have her case heard by a
Court of Queen’s Bench judge and jury
– Slated for preliminary hearing in October
Criminal Libel
• Many of the accused in these cases are
mentally unstable, often fixated on the
defendants and extremely litigious
• E.g. R. v. Knight. Mr. Knight sent several
letters to the Alberta Mental Health Ethics
Committee alleging a nurse “had sexual
relations with” and “attempt[ed] to extort
money from” severely disabled patients.
Criminal Libel
• The nurse was Mr. Knight’s ex-wife. Knight
continued harassing her.
• He was eventually charged with criminal libel
under s.300 and convicted.
• On appeal, Knight presented new medical
evidence that he was delusional and not
criminally responsible.
• The appeal was dismissed as the evidence
was not raised at trial and it would not prove
him NCR in any case
From the Supremes
• “An individual’s reputation is not to be treated as
regrettable but unavoidable road kill on the
highway of public controversy…”
• “but nor should an overly solicitous regard for
personal reputation be permitted to ‘chill’
freewheeling debate on matters of public interest.”
Justice Binnie
WIC Radio Ltd. v. Simpson
From the Supremes
• Freedom of expression
• Vigorous debate
• Charter s.2(b) –
“Everyone has…
freedom of thought,
belief, opinion and
expression, including
freedom of the press
and other media of
communication.”
• Protection of reputation
• Personal integrity and
privacy
• The good reputation of
an individual
represents and reflects
the innate dignity of the
individual, a concept
that underlies all the
Charter rights
From the Supremes
• “..the traditional media are rapidly being
complemented by new ways of
communicating on matters of public interest,
many of them online…”
• “A review of recent defamation law suggests
that many actions now concern blog
postings and other online media which are
potentially both more ephemeral and more
ubiquitous than traditional print media.”
From the Supremes
• “While established journalistic standards
provide a useful guide by which to evaluate
the conduct of journalists and non-journalists
alike, the applicable standards will
necessarily evolve to keep pace with the
norms of the new communications media.”
Chief Justice McLachlin
Grant v. Torstar Corp
Loss Prevention
Employee
• Be accurate.
Supervisor
• Check facts.
• Golden Rule: If you
wouldn’t like that said
about you, should it be
said at all?
• Does the statement
concern a matter of public
interest?
• If an opinion, is it
honestly held?
• Is it too extreme in
content/expression to be
credible as an honest
view?
Internet Usage Policy
Policy Overview
We provide access to the vast information resources of the Internet to help you do your
job faster and smarter. The facilities to provide that access represent a considerable
commitment of firm resources for telecommunications, networking, software, storage,
etc. This Internet usage policy is designed, to help you understand our expectations for
the use of those resources in the particular conditions of the Internet, and to help you
use those resources wisely.
While we’ve set forth explicit requirements for Internet usage below, we'd like to start
by describing our Internet usage philosophy. First and foremost, the Internet for this
firm is a business tool, provided to you at significant cost. That means we expect you
to use your Internet access primarily for business-related purposes, i.e., to
communicate with clients and suppliers, to research relevant topics and obtain useful
business information. We insist that you conduct yourself honestly and appropriately
on the Internet, and respect the copyrights, software licensing rules, property
rights, privacy and prerogatives of others, just as you would in any other business
dealings. To be absolutely clear on this point, all existing firm policies apply to
your conduct on the Internet, especially (but not exclusively) those that deal
with intellectual property protection, privacy, misuse of firm resources,
sexual harassment, information and data security, and confidentiality.
Social Media Participation Policy
Policy Overview
We encourage communication among our employees, clients, partners, and others and Web logs (blogs), social networks, discussion forums, wikis, video, and other
social media - such as Twitter - can be great ways to stimulate conversation and
discussion. They're also invaluable tools for clients and potential clients who want to
learn more information about Field LLP and the areas of law we practice in.
This Social Media Participation Policy applies to:
• All blogs, wikis, forums, and social networks hosted or sponsored by Field LLP
• Your personal blogs that contain postings about Field's business, services,
employees, clients, partners, or competitors
• Your postings about Field LLP's business, services, employees, clients, partners,
or competitors on external blogs, wikis, discussion forums, or social networking
sites such as Twitter
• Your participation in any video related to Field LLP's business, services,
employees, clients, partners, or competitors, whether you create a video to
post or link to on your blog, you contribute content for a video, or you appear
in a video created either by another Field LLP employee or by a third party.
Even if your social media activities take place completely outside of work,
as your personal activities should, what you say can have an influence on
your ability to conduct your job responsibilities, your teammates' abilities
to do their jobs, and our business interests.
An Ounce of Prevention…
• Take Technical steps
– E.g.block access to social media from work
– Monitor employees’ Internet access and use
• Educate Staff and Implement Policies
– Internet Usage Policy
– Social Media Participation Policy
• Supervise and Enforce the Policies
– Not only on a complaint basis - do spot checks
– Take appropriate disciplinary action
This presentation will be
available for download.
www.fieldlaw.com
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Dan Carroll, Q.C.
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